In light of recent high profile pipeline incidents, PHMSA, among other federal agencies, is experiencing an unprecedented number of requests for disclosure of information under the Freedom of Information Act (FOIA) at 5 U.S.C. 552, et seq. These requests often come from Congress, citizen groups, or other administrative agencies such as the NTSB. FOIA, referred to as the public “right to know” statute, provides that any person has the right to obtain access to federal agency records, except to the extent that portions of those records are protected from public disclosure by one of 9 exemptions. Most federal agencies have their own FOIA regulations. For example, the Department of Transportation includes the FOIA statutory exemptions at 49 C.F.R. Part 7.13 and provides that the Agency’s policy is to make records available to the public to the greatest extent possible, including “providing reasonably segregable information from documents that contain information that may be withheld.”
Several FOIA exemptions have practical application to materials that pipeline operators submit to PHMSA and other federal agencies in various contexts whether it be construction and permitting, inspection and enforcement, or incident response and investigation. These exemptions include: (1) trade secrets and commercial or financial information obtained from a person that is privileged or confidential (FOIA Exemption 4); (2) personnel and medical files and similar files the disclosure of which would constitute an unwarranted invasion of personal privacy (FOIA Exemption 6), and (3) information that is part of an ongoing enforcement proceeding (FOIA Exemption 7). Further, pipelines represent an important part of the critical energy infrastructure in the United States for which Congress and the Department of Homeland Security have taken steps to limit the public disclosure of certain information that has national security implications (FOIA Exemption 3 and related statutory and regulatory directives).
In submitting documents to a federal agency, whether they are required or submitted voluntarily, operators should consider proactively marking documents that are potentially confidential under FOIA exemptions or that may contain sensitive security information as “Confidential Protected from Public Disclosure.” If the documents are subject to a FOIA request, this requires the federal agency to consult with the operator prior to making the decision whether to disclose the documents. In order to maintain control over redactions to the documents that are submitted to a federal agency, it may also be beneficial to submit proposed redactions of any qualifying confidential information prior to submitting the documents to the federal agency. Many federal agencies have regulations regarding redacting documents that should be considered when making redactions. See e.g., 49 C.F.R. Part 190.209(d) (requiring an operator who seeks confidential treatment for any portion of documents submitted in response to an enforcement action to provide a second copy of the document that includes redactions of confidential information and an explanation for each redaction).